On June 15, 1998, in
Pennsylvania
Department of Corrections v. Yeskey, No. 97-634, 1998 U.S. LEXIS 3888
(June 15, 1998), the Supreme Court decided that state prisons are covered
under Title II of the Americans with Disabilities Act (ADA), which prohibits
discrimination on the basis of disability by state and local governmental
programs in receiving benefits of the public entity. The Court found
no ambiguity in coverage under Title II, although it declined to decide
whether applying the ADA to state prisons is constitutional under the Commerce
Clause or the Fourteenth Amendment. The decision affirms the Third
Circuit decision on this issue. SeeYeskey v. Pennsylvania,
118 F.3d 168 (3d Cir. 1997).

The case involved a prisoner
in the Pennsylvania correctional system who was seeking to participate
in a Motivational Boot Camp program for first-time offenders. Completion
of the program would result in parole in six months. He was denied
participation in the program because of his history of hypertension, which
Yeskey claimed violated Title II of the ADA. The Court held that
the Motivational Boot Camp program was unambiguously one of the types of
programs intended to be covered by Title II. The Court referenced
other programs, such as medical services, recreational activities, educational
and vocational programs, and contact visitation programs as falling within
the scope of coverage. This reference is significant in light of
the numerous cases in which such programs have been addressed by lower
courts. The Court was not persuaded by the argument that because
a program is voluntary, it is not covered. For case references,
see Laura F. Rothstein, DISABILITIES
AND THE LAW Section 9.10 (Westgroup 1997 and cumulative supplements).

It is important to recognize
that while the Court held that Title II applies to state prisons, it does
not mean that all cases brought by state prisoners will be successful.
Unlike the Supreme Court's decision in Yeskey, there have been a
number of lower court cases in which the courts have "collapsed" the ADA
analysis, by not separating out jurisdictional issues of whether the program
is covered from the merits, such as whether the individual has a disability,
whether the individual is otherwise qualified, whether there is a direct
threat, and whether reasonable accommodations can be provided. Unfortunately,
in some of these decisions, the courts have addressed claims without substantive
merit by deciding that the program is not covered or that the individual
is not disabled. The special concerns about security and safety may
affect
accommodation and qualification issues differently in the prison setting.

One example is White v.
Colorado, 82 F.3d 364 (10th Cir. 1996), in which the court held that
the ADA does not cover prison employment. The case involved whether
an HIV positive prisoner should be allowed to work in food service.
The court could have found no liability because of the unique conditions
of prisons and HIV positive prisoners that there was a direct threat to
safety posed in this case and therefore the prisoner would not be otherwise
qualified. Instead, the court resolved the issue by deciding that
prison employment is not covered. In light of the Yeskey decision,
all such decisions must be re-evaluated on the basis of these other issues.
See
e.g.Amos v. Maryland Department of Public Safety & Correctional
Services, 126 F.3d 589 (4th Cir. 1997) (ADA does not apply in claim
that prison was indifferent to serious medical needs of disabled prisoners).

The holding in Yeskey
is important in light of the growing number of cases involving the ADA
and correctional facilities. These cases involve a number of claims,
including accommodations for deaf and hearing impaired prisoners and arrestees;
architectural barriers in correctional facilities; exposure to second-hand
smoke; access to health care for serious medical needs; and segregation
and other treatment of prisoners with HIV.

The treatment of prisoners
with HIV could be affected by the forthcoming Supreme Court decision in
Abbott
v. Bragdon, which may decide whether individuals who are HIV positive
are considered to be disabled within the definitional coverage of the ADA.